APPELLATE BRIEF ASSIGNMENT

ISSUE

Under CPC §184 and CALCRIM §420, did Mr. Tommy Tango conspire to commit arson (CPC §§182 (a)(1) and 451) and insurance fraud (CPC §§182 (a)(1) and 550 (a)(1)), when there is sufficient evidence that proves he did not commit any overt acts in furtherance of either crime and that he withdrew from the conspiracies before any overt act was committed by his coconspirator?

STATEMENT OF THE CASE

Mr. Tommy Tango was charged with conspiracy to commit arson (CPC §§182 (a)(1) and 451) and conspiracy to commit insurance fraud (CPC §§182 (a)(1) and 550 (a)(1)). Despite the facts that Mr. Tango did nothing to cause the completion of either crime, the trial court found Mr. Tango guilty of both conspiracy charges. Mr. Tango is appealing this decision based on the premise that the trial court misinterpreted the definition of conspiracy and overt acts done in pursuance of conspired crimes. Additionally, there is sufficient evidence that supports that Mr. Tango withdrew from both conspiracies, which is in opposition with the trial court’s ruling.

STATEMENT OF APPEALABILITY

This appeal is from the Final Order of the Santa Barbara County Superior Court (Cal. Rules of Court, rule 8.204(a)(2)(B)). This case is appealable pursuant to California Penal Code section 1237(a).

STATEMENT OF FACTS

Mr. Tango co-owns Studz and Sudz Laundromat in Isla Vista, California with his husband Carl Clueless. Approximately one year ago, Studz and Sudz began to lose money, causing significant financial strife for Mr. Tango and Mr. Clueless. With a heavy heart, Mr. Tango decided to burn down Studz and Sudz for insurance money, without the knowledge of Mr. Clueless. Mr. Tango hired Mr. Bill Boffo to burn down the Laundromat, as he was known around Isla Vista for doing odd jobs. Mr. Boffo agreed to burn down the Laundromat in exchange for 15% of the insurance money to be claimed as a result of the fire. Mr. Tango conceded to Mr. Boffo’s terms and told him that he would text Mr. Boffo once the Laundromat was empty the following Tuesday (the day of the planned fire).

Mr. Tango made it abundantly clear that if Mr. Boffo did not receive a text by 10am on Tuesday morning, it meant that Mr. Boffo should not burn down the Laundromat as the lack of a text signified that Mr. Tango had decided not to go through with the crimes. Mr. Tango and Mr. Boffo both agreed that the lack of a text would signify Mr. Tango withdrawing from the conspiracies.

On Tuesday morning, Mr. Tango asked Mr. Clueless to get coffee at Starbucks. Before leaving their building, Mr. Clueless showered and Mr. Tango checked the Laundromat to see if any customers needed assistance. On the couple’s way to Starbucks, Mr. Tango decided not to go through with the crimes and, therefore, did not send Mr. Boffo a text regarding the status of the Laundromat. This act (or lack thereof) aligned with their original agreement that Mr. Boffo should not complete the crimes. Mr. Clueless mentioned to Mr. Tango that his brother Desmond Clueless was napping in the Laundromat building. Upon hearing this, Mr. Tango called Mr. Boffo to ensure that he was would not set fire to the Laundromat. Mr. Tango also left him a voicemail to tell him not to go through with the fire.

Throughout this entire proceeding, Mr. Boffo’s phone batteries were dead. As a result, Mr. Boffo could not receive Mr. Tango’s text messages or voicemails and yet, set fire to the Laundromat regardless. Mr. Tango did not pursue insurance money for the burned building, as he was too distraught that the crime had occurred without his consent.

ARGUMENT

I. Standard of Review Mandates Overruling the Summary Judgment Order  

The trial court concluded incorrectly when it decided in favor of the County of Santa Barbara and found Mr. Tango guilty of the conspiracies to commit arson (CPC §§182 (a)(1) and 451) and insurance fraud (CPC §§182 (a)(1) and 550 (a)(1)). Mr. Tango wishes to challenge the court’s decision in a de novo standard of review. This case is appealable (as previously stated) per CPC §1237 (a), which states that a defendant may appeal a court’s decision “from a final judgment of conviction.”

This case is being appealed on the grounds of CPC §184 and CALCRIM §420. CPC §184 states that an individual must “effect the object” of the conspired crime in order to be charged with conspiracy. This is upheld by People v. Sconce, which affirms that a conspiracy is complete upon the “commission of an overt act.” Conversely, Mr. Tango did not commit any overt acts that caused the objects of the conspiracies, i.e. arson and insurance fraud.  Additionally, CALCRIM §420 states that a defendant is not guilty of conspiracy if they reject the conspiracy with an affirmative deed prior to the commission of an overt act. Mr. Tango committed several acts that constitute as acts of withdrawal from both conspiracies.

This appeal is based on a summary judgment; the judgment’s error comes from a misinterpretation of the law – namely CPC §§182(a)(1) and 184, and CALCRIM §420. Therefore, this case is subject to a de novo standard of review. This requires that the Appellate Court examine the facts of Mr. Tango’s case, find him innocent of any overt act, and therefore, recognize his acts of withdrawal. The Court will then reach the conclusion that Mr. Tango should not be held responsibility for the actions of his coconspirator, Mr. Boffo, per CPC §184. Also, the Court will find that Mr. Tango effectively withdrew from the conspiracies per CALCRIM §420. Under the de novo standard of review, this court will decide in favor of Mr. Tango and rescind its original ruling in favor of the County of Santa Barbara.

II. Under CPC §184 and CALCRIM §420, Mr. Tommy Tango did not conspire to commit arson (CPC §§182 (a)(1) and 451) or insurance fraud (CPC §§182 (a)(1) and 550 (a)(1)), as there is sufficient evidence that proves he did not commit any overt acts in furtherance of either crime and that he withdrew from the conspiracies before any overt act was committed by his coconspirator.

The facts laid out in this brief support the argument that under CPC §184 and CALCRIM §420, Mr. Tommy Tango cannot be charged with conspiracy to commit arson (CPC §§182 (a)(1) and 451) or conspiracy to commit insurance fraud (CPC §§182 (a)(1) and 550 (a)(1)). CPC §182(a)(1) outlines the possible punishments for two or more individuals who conspire to commit any crime. As stated supra, a conspiracy is not complete until there is a “commission of an overt act.” However, Mr. Tango did not complete any overt acts “to effect the object” of either conspiracy. Additionally, Mr. Tango “truly and affirmatively” rejected the conspiracies and communicated such rejections to his coconspirator Mr. Bill Boffo before the completion of any overt acts in furtherance of the crimes. Therefore, Mr. Tango cannot be charged with either conspiracy count.

A. Mr. Tango checking the Laundromat for customers does not constitute as an overt act in furtherance of the conspiracies to commit arson or insurance fraud.  

Mr. Tango checking the Laundromat for customers before leaving the Laundromat building does not constitute as an overt act in furtherance of either conspiracy. For this act to be considered overt, Mr. Tango’s checking of the Laundromat would have to effect the completion of arson or insurance fraud.  In other words, the act would need to be “done in pursuance of the crime.” Mr. Tango checking the Laundromat before leaving the building is a routine business practices, evident per the camera footage outside the building. Ensuring that no customers need assistance before exiting the building cannot be categorized as an act “done in pursuance” of either arson or insurance fraud.

While the prosecution may claim that Mr. Tango was checking the Laundromat to see if the building was clear so that he could communicate to Mr. Boffo to pursue the crime, this claim is not viable. Mr. Tango never reached out to Mr. Boffo to communicate any information regarding the status of clients inside the Laundromat. Therefore, Mr. Tango’s actions clearly represent a routine practice and not an act in furtherance of a crime; any responsible business owner would agree that checking on their business before leaving the premise is a normal action. Even if Mr. Tango was checking if the building was clear, this act does not count as an overt act because it in no way propelled the crimes of arson or conspiracy. Thus, Mr. Tango checking the Laundromat before leaving the building does not constitute as an overt act in furtherance of the conspiracies.

B. Mr. Tango bringing his husband Mr. Clueless to Starbucks for coffee does not constitute as an overt act in furtherance of the conspiracies to commit arson or insurance fraud.

Mr. Tango inviting his husband, Mr. Clueless, to coffee does not constitute as an overt act in furtherance of either conspiracy. For this act to be considered overt, the spouse’s coffee date would have to effect the completion of arson or insurance fraud.  In other words, the act would need to be “done in pursuance” of those crimes. Mr. Tango and Mr. Clueless are spouses i.e. they regularly frequent the local Starbucks for coffee dates. Mr. Tango and Mr. Clueless going out for coffee does not effect the occurrence of either arson or insurance fraud. Thus, Mr. Tango’s coffee invitation to Mr. Clueless is not an overt act in furtherance of the conspiracies.

While the prosecution may claim that Mr. Tango asked Mr. Clueless for coffee in an effort to ensure the building was clear, this argument is illegitimate. In order for this argument to be valid, Mr. Tango would have had to communicate to Mr. Boffo that the building was clear, therefore, effecting the object of the conspiracies. However, Mr. Tango never contacted Mr. Boffo to inform him the building was clear and that he could follow through with the crime of committing arson. Even if it was out of the ordinary for Mr. Tango and Mr. Clueless to go out for coffee, their excursion did not further the object of either conspiracy. It is apparent that Mr. Tango taking his husband to coffee is not an overt act in furtherance of the conspiracy to commit arson or insurance fraud.

C. Mr. Tango’s lack of a text to coconspirator Mr. Boffo constitutes as an affirmative withdrawal act rejecting the conspiracies to commit arson and insurance fraud.

Mr. Tango’s lack of a text to Mr. Boffo signifies an affirmative act of withdrawal from both conspiracies, which occurred before the completion of an overt act. In order to withdraw from a conspiracy, a person must withdraw before the completion of an overt act, as well as reject the conspiracy “by word or by deed” to all other members of the conspiracy. A failure to actively participate in the conspiracy is not enough to constitute withdrawal, which is why an act of withdrawal must be communicated to other conspiracy members. Per Mr. Tango and Mr. Boffo’s original conspiratorial agreement, a lack of a text to Mr. Boffo by 10am the morning of the planned fire constituted as Tango’s communicative deed indicating not to complete the crime. Because Mr. Boffo never received a text, Mr. Tango effectively withdrew from both conspiracies.

The opposition may claim that Mr. Tango’s lack of a text does not constitute as an overt act because Mr. Tango was not able to reach Mr. Boffo as a result of Mr. Boffo’s dead phone batteries – and thus, was not a communicative dead. However, Mr. Tango and Mr. Boffo agreed that the lack of a text would be the signifier of the dissolved conspiracies. Therefore, it was reasonable for Mr. Tango to assume he would be able to reach Mr. Boffo by phone and did everything in his power to contact Mr. Boffo by phone. Additionally, Mr. Tango’s lack of a text was communicated before either party committed any overt act. Even if Mr. Boffo’s dead phone batteries prevented him from receiving Mr. Tango’s communicative withdrawal act, Mr. Boffo should have planned to have a working phone the morning of the planned fire. Therefore, Mr. Tango’s lack of a text to Mr. Boffo constitutes as an act of withdrawal from the conspiracies per the men’s original conspiratorial agreement.

D. Mr. Tango leaving a voicemail for coconspirator Mr. Boffo instructing him not to commit either crime constitutes as an affirmative withdrawal act rejecting the conspiracies to commit arson and insurance fraud.

Mr. Tango’s voicemail for Mr. Boffo constitutes as an act of withdrawal from the two conspiracies before the completion of any overt act. A withdrawal act communicated “by word or by deed” must occur before the commission of any overt act. This act must be communicated to all coconspirators in order for it to be a sufficient withdrawal act. After Mr. Tango received no response in the form of a text message from Mr. Boffo, Mr. Tango repeatedly called Mr. Boffo and left him a voicemail instructing him not to go through with the crime. This phone call occurred before the building burned down i.e. before the completion of any overt act. Therefore, Mr. Tango’s voicemail is a sufficient act of withdrawal.

The opposition may point out that this withdrawal act was not communicated to Mr. Boffo because of his dead phone batteries. However, this argument is not viable as Mr. Tango did everything in his power to contact Mr. Boffo; Mr. Boffo made himself unavailable against his and Mr. Tango’s original conspiratorial agreement. Thus, Mr. Tango’s voicemail certainly counts as a withdrawal as it was in addition to the lack of a text, which should have been the only withdrawal act necessary for Mr. Tango. Even if Mr. Tango was unable to reach Mr. Boffo, his leaving a voicemail on Mr. Boffo’s phone (which should have been functioning the day of the planned fire), constitutes as a withdrawal act as it was an affirmative rejection communicated by word to Mr. Boffo before the completion of an overt act.

CONCLUSION

Mr. Tango cannot justly be charged with conspiracy to commit arson (CPC §§182 (a)(1) and 451) or conspiracy to commit insurance fraud (CPC §§182 (a)(1) and 550 (a)(1)). This is due to the fact that he committed no overt acts in furtherance of either conspiracy and that he withdrew from both conspiracies before the commission of any overt act. Neither checking the Laundromat for customers nor taking his husband out for coffee constitute as an overt act in pursuance of either arson or insurance fraud. Additionally, Mr. Tango effectively withdrew from both conspiracy charges by effectively communicating his rejections of the conspiracies to Mr. Boffo. Mr. Tango’s lack of a text to Mr. Boffo as well as his voicemail left for Mr. Boffo constitute as withdrawal acts from both of the conspiracies before an overt act took place. The facts of this case support each element of the codes and cases cited; therefore, the trial court erred in granting the summary judgment motion. Under the de novo standard of review, the Appellate Court must grant this appeal and dismiss the citation against Mr. Tango.